Appeal is Blagojevich’s last hope to cut sentence

The Associated Press (AP) on December 8, 2011 released the following:

“By MICHAEL TARM

CHICAGO (AP) — Rod Blagojevich has one last hope to reduce his harsh 14-year sentence: an appeal.

But lawyers for the disgraced former Illinois governor face long odds in chipping away at the time he must serve for attempting to auction off an appointment to President Barack Obama’s old Senate seat and other crimes, legal experts said Thursday.

Attorneys will have the daunting task of demonstrating that the respected, 25-year veteran Judge James Zagel who oversaw Blagojevich’s two trials made major errors at trial and in calculating a sentence for the 18 convictions, said Lance Northcutt, an adjunct professor at Chicago’s John Marshall Law School.

“Zagel is careful to rule in a way to avoid having his decisions overturned and his reasoning for this sentence on Wednesday was detailed,” he said. “A higher court is loath to second-guess the trial court – and they rarely do.”

Northcutt was in the crowded Chicago courtroom Wednesday observing as Zagel scolded a visibly anxious Blagojevich – in a tone befitting a school principal – for harming public confidence in government.

Blagojevich’s attorney Sheldon Sorosky told The Associated Press on Thursday that the defense would ask for the convictions to be overturned and for the sentence to be reduced.

“We intend to appeal everything,” he said.

Potential issues on appeal, he said, included whether Zagel placed so much emphasis on sending a message to other would-be political schemers that he unduly inflated the sentence of the twice-elected Democrat.

“He absolutely did,” said Sorosky, noting that Zagel several times mentioned Blagojevich’s predecessor, Republican George Ryan, who was convicted in 2006 and is serving a 6 1/2-year sentence for corruption.

“He said Ryan got 6 1/2 and so I have to give you way more,” Sorosky said. “He was giving Blagojevich the sentence not to punish Blagojevich for what he did but to stop other governors. That’s not right.”

An appeal could drag on for years, and experts add that there is virtually no chance Blagojevich, who turns 55 Saturday, would be able to put off reporting to prison as scheduled on Feb. 16.

Blagojevich has started a bleak countdown toward that date. In the meantime, he will spend a Christmas at home with his wife, Patti, and their daughters – Amy, 15, and Annie, 8. Once behind bars, Blagojevich will be cut off from the outside world, with visits from his family strictly limited. He’ll share a cell and perform a menial job.

As it stands, he won’t be eligible for early release until 2024, when he’s 67.

Only felons deemed likely to prevail on appeal can stay out of prison in the interim, and that doesn’t seem to apply to Blagojevich. Zagel will make that determination.

“Slim to none,” said Gal Pissetzky, a Chicago-based attorney who practices in federal court.

Zagel’s comments at the sentencing weren’t devoid of conciliation. He told Blagojevich he accepted that he did some good as governor, such as on children’s health issues, and said it was “a mitigating factor” for the sentence.

He also cited the former governor’s direct appeal for mercy, in which an untypically contrite Blagojevich repeated apologized and said, “I have nobody to blame but myself. … I am just so incredibly sorry.”

Zagel’s acceptance of Blagojevich’s apologies, Northcutt said, likely kept the former governor from getting an even longer term. Blagojevich’s attorneys will thus likely focus their appeal on trial errors and not on asserting that he did not commit the crimes, Northcutt said.

If the higher court determines Zagel didn’t give Blagojevich a fair trial – even if he admitted the crimes during sentencing – they could toss out the convictions and order a new trial.

In defense motions filed during Blagojevich’s retrial, the defense accused Zagel of bias, pointing to how he almost invariably sided with prosecutors when there were objections during testimony.

They could make similar claims in any appeal.

Blagojevich’s lawyers also have complained that Zagel had repeatedly rejected their requests to play FBI wiretap evidence that they claimed would help their defense.

Chicago attorney Michael Ettinger, who represented Blagojevich’s brother and co-defendant, Robert Blagojevich, at a first trial, said the tapes may be good grounds for appeal.

“I’ve heard those tapes, and what Rod says in one hour, he says something the opposite the next hour,” he said Thursday.

During the sentencing hearing, Zagel rejected the notion – made often by Blagojevich’s own attorneys at trial – that the recordings showed Blagojevich was merely a big talker who brainstormed wildly as a way to weed out good ideas from bad ones.

“Musings are talks without purpose, not the material of arranged meetings and repeated phone calls” to commit crimes, Zagel said. “The jury and I do not believe these were musings.””

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.